Photo courtesy of Mobile Barriers

By John Schneidawind, vice president of public affairs, ARTBA

The Federal Highway Administration (FHWA) Sept. 26 repealed a 103-year-old federal procurement rule that prohibited state and local governments from using patented or proprietary products on highway and bridge projects that receive federal funding—unless those products qualified for limited exceptions.

Commonly known as the “proprietary products rule”, it was adopted in 1916 by the U.S. Department of Agriculture, which then managed the emerging federal-aid highway program.

“This archaic regulation was a roadblock to innovation,” ARTBA President & CEO Dave Bauer said. “The status quo is the only thing that should be off the table as we seek to deliver and fund transportation solutions.”

FHWA’s decision, he added, is a major victory for motorists that should spur deployment of new technologies to help save lives, minimize congestion and improve the performance of the nation’s highways.

ARTBA formally petitioned the U.S. Department of Transportation (U.S. DOT) in March 2018 seeking repeal. In response, the agency issued a “Notice of Proposed Rulemaking” in November 2018. The FHWA action takes effect October 28.

The FHWA characterized the rule as a “barrier to innovation in highway technology” and noted that its repeal “best provides State DOTs [Departments of Transportation] greater flexibility to use innovative technologies in highway transportation.”

The FHWA action will free up states to use federal highway funds on a host of patented or proprietary road and bridge technologies that can help deliver a safer and more efficient roadway system for American motorists and businesses.  These include reflective road lane dividers that deter tired motorists from drifting into oncoming traffic, traffic signs that minimize injury by collapsing at the slightest impact and road barriers on wheels that provide physical but movable walls between traffic and construction workers.

“This is only the first step in an important process,” Bauer noted. “We must continue to explore how best to integrate new technologies into the transportation marketplace and ensure that new, beneficial ideas are not prevented from reaching the driving public. At the same time, we have confidence transportation agencies will work to protect the integrity of procurement processes in their respective states.”

ARTBA was assisted in the petition action by the Washington, D.C., law firm, Venable, LLP.  The Venable team was led by former U.S. Secretary of Transportation James Burnley.